Supreme Court abortion case brings 19th century chastity law to the forefront

But there is uncertainty and disagreement among anti-abortion advocates about what that means. Some prominent figures in the anti-abortion movement dismiss the possibility that it would be used to effectively ban medication abortion, which depends on the shipment of abortion drugs to providers, even as other abortion foes have said the law – interpreted to its fullest extent – could potentially end not only medication abortion, but abortion altogether.

Abortion rights supporters argue that their opponents are over reading the law and are ringing alarm bells, as at least some justices on the Supreme Court appear to be entertaining a maximalist interpretation of the law’s reach.

Alito wrote the court’s opinion overturning Roe v. Wade, while Thomas is seen as a judicial pioneer in his success in bringing into the legal mainstream views previously seen as fringe. Their interest in the law’s relevance to Tuesday’s case speaks to how the Comstock Act has taken a more prominent role in the efforts to further limit abortion.

“Overturning a constitutional right to privacy that extends to abortion – as reflected in Roe v. Wade – is not their stopping point … they will do anything, even if that is seeking to resuscitate a 19th century statute that was passed before women had the right to vote,” said Skye Perryman, the president and CEO Democracy Forward Foundation.

Comstock and the current case against the FDA

The Comstock Act was first enacted by Congress in 1873 to ban the use of the mail to transport a wide range of “lewd” materials, including pornography, birth control, and drugs or other instruments used for abortion. There were some prosecutions under the law in the initial decades after it was passed, but courts in the early 19th century whittled down its scope, and enforcement of it stopped altogether while Roe v. Wade – the 1973 abortion rights precedent that the Supreme Court overturned in 2022 – was on the books.